‘Next of kin’ ‘Person Responsible’ and ‘Enduring Guardian’ – who has the power?

Did you know that the term "next of kin" has no legal status in NSW? Do you know the difference between "Next of Kin", "Person Responsible" and "Enduring Guardian"?

‘Next of kin’ ‘Person Responsible’ and ‘Enduring Guardian’ – who has the power?

Released: 05-Sep-2016

Event Date: to

Did you know that the term 'Next of Kin' has no legal status in NSW? Do you know the difference between 'Next of Kin', 'Person Responsible' and 'Enduring Guardian'?

This September, COTA NSW will be running Consumer Reference Groups (CRGs) on the issue of planning ahead. We’ll be talking to over 50s around NSW about what plans they’ve made and what’s important when deciding who we want to take on decision making for us later in life. Find out how you can join your local CRG.

Planning ahead is an easy way for us to ensure that later in life the big decisions are made the way would wish. To make it easier to plan ahead, let’s take a look at the different terms used when we discuss substitute decision-making.

Who is the ‘Person Responsible?’

There is an automatic delegation process for substitute decision making that applies to all adults in NSW. It is known as the Person Responsible process. If an adult lacks capacity to make decisions about their medical treatment, then their Person Responsible has authority to make those decisions on their behalf. A Person Responsible does not have to be appointed or chosen by the person who lacks capacity.

Then who is a ‘Next of Kin’ and how is that different?

Many people mistakenly think that a person’s ‘next of kin’ can give substitute consent for their medical treatment. However, in NSW under the Guardianship Act, it is the Person Responsible who makes decisions on behalf of a person who has lost capacity.

What about an ‘Enduring Guardian?’

An adult can appoint an Enduring Guardian to make personal and lifestyle decisions on their behalf if they lose capacity to make such decisions. If a person appoints an Enduring Guardian with authority to make medical treatment decisions on their behalf then that person automatically becomes the first in the hierarchy of Person Responsible. However, unlike a Person Responsible, an Enduring Guardian also has the authority to make substitute decisions about a range of personal/lifestyle areas, not just medical treatment decisions.

The Guardianship Act 1987

The Guardianship Act provides a way for substitute decisions to be made for adults in NSW who lack capacity, including mental illness. It establishes the ‘Person Responsible’ process for medical consent and enables guardians to be appointed to make medical and/or other decisions, such as decisions about accommodation and services.

Under the Guardianship Act 1987, substitute decisions about medical treatment can be made by:

A Person Responsible; or

The Guardianship Division (The Guardianship Division is a Division of the NSW Civil and Administrative Tribunal (NCAT) and was known as the Guardianship Tribunal before 1 January 2014).

The role of the Guardianship Division of NCAT to appoint guardians /consent to medical treatment

Sometimes a person may have no-one in their lives who fits the Person Responsible criteria. They may choose not to appoint an Enduring Guardian or may already lack the capacity required to do so. In these situations it is important to understand how the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT) plays a role.

The Guardianship Division can appoint a guardian to make a range of personal/lifestyle decisions, such as where to live or what services to receive, as well as the authority to make medical treatment decisions. The Guardianship Division can also consent to medical treatments for adults who lack capacity to consent to such treatments. These options are set out in the Guardianship Act 1987.

Things to Remember

A health professional who wants to provide medical treatment to a patient needs to find out who is their Person Responsible so they can ask them for consent for the treatment.

A Person Responsible is the ‘automatic’ substitute decision maker set out under the Guardianship Act. The Act sets out the hierarchy for the Person Responsible. This is an automatic system which applies when a person lacks capacity to make medical treatment decisions.

The person who is highest on the hierarchy is the Person Responsible and must consent to a proposed non-urgent treatment before it can given. e.g. an enduring guardian ‘outranks’ a person’s spouse and must be asked for consent.

Many people mistakenly think that a person’s ‘next of kin’ can give substitute consent for their medical treatment and are not aware of the Person Responsible process.

If you'd like to join in a discussion about this topic, why not get involved in one of our Consumer Reference Groups on the issue of planning ahead? Sessions will be running in: Central Coast, Port Macquarie, Wagga Wagga, Wollongong, South Western Sydney, Sydney CBD. Click here for details.